Honest opinion

III UNDERLYING PRINCIPLES
Common to all such jurisdictions is the major tension in the law of defamation between freedom of expression and the individual’s right to reputation. The defence of honest opinion holds a key position within this tension, and is based on a set of principles that have remained more or less intact throughout both its common law development and later statutory enactments. The key concept of the defence, which protects statements of opinion as opposed to fact, is not difficult to grasp. It is essentially that people should be able to express their own opinions on the facts before them, even when those opinions are critical of others.

Whose Honest Opinion and Why?

As a result, honest opinion is aimed at a broad range of defendants, and is certainly not limited to those expressing reasonable or orthodox views. The defence enshrines “the right of the crank to say what he likes”, and is open to commentators with exaggerated, obstinate or prejudiced opinions.

In practice the defence is especially useful to media defendants, journalists and others who frequently evaluate and comment on the actions of others. However, with the rapid growth of the internet and other readily accessible means of mass­communication, the likelihood is that a growing number of people from all walks of life will be publishing opinions and relying on the defence.

The broad availability of the defence of honest opinion is closely linked to freedom of expression. Section 14 of the New Zealand Bill of Rights Act 1990 affirms the “freedom to seek, receive and impart … opinions of any kind in any form.” By protecting the freedom of expression of those who publish defamatory opinions, over and above those who suffer damage to their reputation, honest opinion occupies a noble place in the law as “… one of the fundamental rights of free speech and writing … and is of vital importance to the rule of law on which we depend for our personal freedom … .”

In principle, honest opinion promotes freedom of expression by enabling people to pass judgment on other people in society without the fear of being stung by the sharp end of defamation suits.

However, various limitations have been placed upon the principled position that the defence should be broadly available to those exercising their right to impart opinions. …

A summary of those limitations: 1) Honesty, 2) Supporting facts, 3) A matter of public interest. [That seems fair enough.]

I’m not a lawyer’s elbow, nor do I claim to understand all the implications of this, but this very interesting thesis also contains some good pointers for those publishing the opinions of others.

– Peter

PS “The defence is … open to commentators with exaggerated, obstinate or prejudiced opinions”. (Um, hello poormastery? Are we obstinate?)

14 Comments »

Opinions don’t matter. Only the law matters. It’s really that simple. Most people are quite unaware of the complex nature of the law, and that it has character, legacy, and history all of its own being. But, all the same, most people understand it instinctively.

Right and wrong – these two are fundamental concepts, and part of our quintessence. These things are not abstract, they are black-and-white and hard as rock.

If the law is “black-and-white” (to use your phrase) it seems to me it’s black-and-white on the ‘rule’ that we each have the right to express our opinions (‘freedom of expression’ — Bill of Rights: “freedom to seek, receive and impart … opinions of any kind in any form.” ) — and, further, to publish our negative opinions about people’s actions or statements.

You may have heard of Matthew Gilligan, an Auckland-based accountant, part-time property developer and seminar presenter who sometimes works with property spruiker Dean Letfus … and before that, worked extensively with property spruikers Richmastery.

I mention him here on thePaepae.com from time to time, since he’s had a bit to say about me in public, questioning attacking my ethics and moral character.

Here is how Matthew Gilligan greeted last year’s announcement by local discussion forum PropertyTalk that “to avoid litigation” the forum would revise their moderation standards — and, it transpired, they would also censor (i.e. delete entirely) several apparently contentious discussion threads including two which discussed Matthew Gilligan’s property developments at Sponge Bay and Perriam Cove. Matthew Gilligan initially started the Perriam Cove thread himself with the words:

Any questions about this development welcomed.

Well, as it turned out … ‘welcomed’ only up to a point, I guess.

Anyway, this is how he greeted the announcement of the ‘new rules‘ and censorship regime at PropertyTalk (emphasis added)

New Rules – Matt Gilligan’s View

To me, this is about ethical publishing standards, and it is about making sure that people are acting in a lawful manner in here. Many statements made when considered cumulatively by the posters, or network of posters supporting them, are defamatory in nature and expose PT and the poster to liability.

Smear campaigns orchestrated to undermine rivals and spread dissent about an organization are illegal. PT know this because I have reviewed the site with my solicitors and we have legal advice to this effect that I have shared with Donna and Mark. It is not hard to prove it, – you just follow the culprits [Comment: ‘culprits’? Oh boy!] around and take screen shots [!!!] of a months posting and you get a clear picture they are running a smear campaign on rivals. Its gross and undermining of the culture in here.

But this is also about making PT a nice place to be. And that is the best part of what the moderators are proposing here. Making this please a nice place to participate in.

So this this is fantastic news for PT and well done moderators for making a move to clean this place up. From my perspective it became a cess pit with the bun fights, and some were actually using PT for a defamatory smear campaign on their competitors. This is and was totally unacceptable and illegal.

The point I was making in Friday’s and Saturday’s posts, [Comment: Matthew Gilligan’s posts themselves were removed by the Moderators as “unhelpful for the environment we wish to foster on PT” — ironic?] is that this is a forum for people to come to to debate and learn about everything property and related topics that take our fancy. The forum has become derailed by a few, in their furtherance of their own commercial interest. As we all know, some of the smear campaigns in here have been very clever and well crafted smear smear campaigns ( that deride others) while seeming to be in public interest. And the outcome is constructive debate morphs into feuding battles, with the debate/knowledge going by the wayside.

I look forward to a constructive, focused debate and information sharing without the politics of competitors selling themselves by smearing crap all over others.

Bravo PT, (if you follow through now). And thanks to the hardworking moderators for caring and stretching themselves to change their view of this place. I know its not easy.
__________________
Matthew Gilligan CA

So, JT, do I read you correctly?: You’re in agreement with Matthew Gilligan that public expression of ‘honest opinion’ can be “unlawful” and “illegal’?

I have to say, if that’s the case, I don’t agree with the two of you. I think you’re stretching a long bow to make that rather extreme interpretation … based on what I read in the Victoria University law school thesis I quoted.

Personally, I think you and Matthew Gilligan have got the wrong end of the stick. I’m interested in hearing your response … let’s discuss.

While I don’t know this “Mathew Gilligan,” I am familiar with the situation you cited.

However, it simply proves my point. Everything you quoted is only “his opinion.” And as I said, opinion means nothing. There was no legal ruling in this matter. No Civil Lawsuit was made and certainly no criminal activity discovered. In fact, PT received only a letter. And please correct me if I’m wrong, but as far as I am aware, nothing came of Mathew Gilligan’s “opinion” other than the fact that PT did what he wanted – without question or without seeking legal advice: they removed those posts which most offended him. Gilligan got what he wanted — without being challenged or without allowing the law to examine his “opinion.”

Don’t get me wrong – people are, and must be, allowed to have an “opinion.” But, beyond that, unless they are ready to prove their “opinion” is something more than just an “opinion,” then the only “opinion” that really matters is that of a Judge. And even then, that Judge’s “opinion” can be overturned by another Judge in a Higher Court; and again, in an even Higher Court.

* * *

Here is an idea that you may not have considered: Gilligan, his firm, and a few of his friends were major advertisers on the PT web-site. Perhaps it is here that we find PT’s real motivation in removing “said” posts. Gilligan may have been only one of many desperate property developers caught in the market crash, who, not understanding the transparency of their own portfolios, sought a scapegoat. PT fit the bill — and may have been more complicit than you know. From a financial standpoint it’s always better to keep the people happy who give you money, than to irritate the few who don’t.

Personally, I think that anyone with a modicum of intelligence can see that Gilligan’s “opinion” is more self-obsessed rant, than law. At least that’s how I see it. I’d like to think that PT saw it that way too, and were motivated only by the money Gilligan would spend in advertising, rather than the silliness of his “opinions.” But then that’s only my “opinion,” and of course, counts for little.

I completely misunderstood your original comment.
Thanks for clarifying it for me. Sorry about my confusion.

That’s a good insight.
HIS opinions, although stated with such conviction and using black-and-white, conclusive words such as ‘unlawful’ ‘illegal’ ‘unacceptable’ ‘liability’ ‘smear campaign’ etc are just his opinions.

Still,as you point out, Matthew Gilligan DID achieve his desired outcome and the Sponge Bay and Perriam Cove discussion threads — including his own contribution, consisting in part of strident allegations he made against those questioning him — have ceased to be part of his ‘track record’.

‘I have legal advice’

Frankly, in my experience, legal opinions and lawyers’ letters are basically a commodity for sale and purchase and they’re often put forward in an attempt to threaten or intimidate. I’m not saying that’s the case here, just that I’m NOT convinced, personally, of the argument being advanced. I’d be interested in reading his ‘legal opinion’.

Overall, it’s a big stretch to describe someone’s comments or questions about your activities — what someone SAID — however hurtful one finds it, as “illegal”. Things just aren’t that black and white.

I’m glad you brought up the word “illegal” because that did jump right off the page as ridiculous to me. There is nothing illegal about “opinion” – even if that ”opinion” actually damages a person financially.

If damaged financially, the proper venue is Civil Court: to be made whole for real and proven damages. The word “illegal” implies criminal activity – that an actual law is broken. It is not against the law to have an “opinion.” Now if that “opinion” actually strays into damaging a person financially then that’s another story.

There are two Courts in English law: Criminal and Civil. They are two completely different animals and both have many subcategories. Gilligan’s use of the word “illegal” is out of context simply because he did not state which law was broken. If an actual law was broken then Gilligan would only need report the “crime” to the police and they would have been compelled by duty to make the appropriate arrests. As none of this happened it seems to me that Gilligan’s alleged “Smear campaign,” fades into “opinion,” if not paranoid gibberish.

When one considers that someone like this thrives on the ignorance of others – especially the uneducated – he believes that he is right and that his actions are impervious to the greater world at large: but only because he is not part of the greater world at large does he believe this. He seems very small to me, sad even.

Well! You seem pretty hard on Matthew Gilligan. I don’t know that there’s enough ‘supporting evidence’, really, for the character assessments you make, but it’s a free country, you’re entitled to state your opinion. Is he ‘sad’? I don’t know.

I can’t emphasie [sic] how revolting their CEO and some of their management team were to deal with. Insincere, arrogant corproate [sic] pigs, – you have no idea. They really rated themsleves and I told them that I did not believe a word they said, that their tax and legal advisors provided ‘purchased’ opinions to suit their purposes, and their products were crap. We know this as a fact….from talking to employees of organisations providing the opinions.

While we are each no doubt capable of appalling double standards at times, calling the Blue Chip executives ‘revolting and ‘Insincere, arrogant corproate [sic] pigs’ seems a pretty extraordinary example of it. Were those comments from Matthew Gilligan ‘honest opinion’ or ‘illegal, unlawful’, comments culminating in a ‘smear campaign’? Hmmm.

I disagree that Gilligan’s comments above fall under the category of “rant”. I have seen a Gilligan rant and to be honest it appeared to be written by somebody who was either extraordinarily intoxicated or had a limited grasp of English. Apparently he fell into neither category. Blind rage maybe?

“I have seen a Gilligan rant and to be honest it appeared to be written by somebody who was either extraordinarily intoxicated or had a limited grasp of English.”

What a droll word picture you paint, Anna. Yes, in my personal experience also, I have noted Matthew Gilligan has a talent for being whatever the opposite of endearing is … at least in my case. Perhaps he’s an acquired taste? – P

Remember, we are all entitled to our opinion. Gilligan’s opinion is his own. I see nothing “illegal” about his comments. However, had he gone further and accused the Blue Chip executives of some actual felony – without real basis or proof then that would be something else. Calling someone a pig is an opinion. Clearly, people are not pigs. But the connotation that the word “pig” conjures is what he really meant – and that sounds like an “opinion” to me.